14-4606 

Li v. Lynch 

BIA 

Vomacka, IJ 

A099 375 885 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED 

ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE 

PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT 

FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE 

(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY 

OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for 

the Second Circuit, held at the Thurgood Marshall United States 

Courthouse, 40 Foley Square, in the City of New York, on the 

25th day of March, two thousand sixteen. 

PRESENT: 

ROBERT A. KATZMANN, 

Chief Judge,

DEBRA ANN LIVINGSTON, 

DENNY CHIN,

Circuit Judges. 

_____________________________________ 

LIAN LI, 

 Petitioner, 

v. 14-4606 

 NAC 

LORETTA E. LYNCH, UNITED STATES 

ATTORNEY GENERAL, 

 Respondent. 

_____________________________________ 

FOR PETITIONER: Joan Xie, Law Office of Joan Xie, 

 New York, N.Y. 

FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 

Assistant Attorney General; Ernesto 

H. Molina, Jr., Assistant Director; 

Sabatino F. Leo, Trial Attorney, 

Office of Immigration Litigation, 

United States Department of Justice, 

Washington, D.C. 
2

UPON DUE CONSIDERATION of this petition for review of a 

Board of Immigration Appeals (“BIA”) decision, it is hereby 

ORDERED, ADJUDGED, AND DECREED that the petition for review is 

DENIED. 

 Petitioner Lian Li, a native and citizen of China, seeks 

review of a December 9, 2014, decision of the BIA affirming a 

December 17, 2012, decision of an Immigration Judge (“IJ”) 

denying Li’s application for asylum, withholding of removal, 

and relief under the Convention Against Torture (“CAT”). In 

re Lian Li, No. A099 375 885 (B.I.A. Dec. 9, 2014). We assume 

the parties’ familiarity with the underlying facts and 

procedural history in this case. 

Ordinarily, where the BIA adopts the decision of the IJ, 

we review the IJ’s decision directly. Yang v. U.S. Dep’t of 

Justice, 426 F.3d 520, 522 (2d Cir. 2005). Here, however, the 

BIA rejected the IJ’s speculation regarding Li’s possible 

motivations for undergoing abortion procedures. Accordingly, 

we review “the judgment of the IJ as modified by the BIA’s 

decision,” id., and do not consider the IJ’s speculation 

regarding her motivation as part of the agency’s adverse 

credibility determination.” Id. 

The applicable standards of review are well established. 

We review the IJ’s factual findings under the “substantial 

evidence” standard and will uphold them “if they are supported 
3

by ‘reasonable, substantial and probative evidence in the 

record.’” Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009) 

(quoting Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 116 (2d 

Cir.2007)); see also 8 U.S.C. § 1252(b)(4)(B). 

Under the REAL ID Act of 2005, the agency may, in light of 

“the totality of the circumstances,” base an adverse 

credibility determination on an asylum applicant’s “demeanor, 

candor, or responsiveness,” the plausibility of her account, 

and inconsistencies in her statements, “without regard to 

whether” those inconsistencies go “to the heart of the 

applicant’s claim.” 8 U.S.C. §§ 1158(b)(1)(B)(iii), 

1231(b)(3)(C); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165 (2d 

Cir. 2008). Under the “substantial evidence” standard of 

review, “[w]e defer . . . to an IJ’s credibility determination 

unless, from the totality of the circumstances, it is plain that 

no reasonable fact-finder could make such an adverse 

credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. 

Here, we cannot conclude that the IJ’s adverse credibility 

determination was unreasonable. The IJ found that Li had 

inflated the frequency of her participation in political 

activities involving the Democratic Party of China National 

Committee (“DPCNC”). In both her testimony and amended 

statement, Li described the democracy group’s routine work as 

follows, giving the impression that she was involved in its 
4

regular activities: “[W]e have two significant activities. 

One is on every Saturday, and then we go to Manhattan Times 

Square, and then we participate in the Jasmine movement. And 

then every month, second Tuesday, we go in front of the 

consulate, and then we participate in the demonstration.” 

However, her participation was limited to attending four 

protests and authoring three online articles in January, 

February, and June 2012, all of which occurred shortly after 

she joined the DPCNC and right before she filed an amended 

statement with the Immigration Court. She moved to Florida 

almost immediately after joining the group, and once she filed 

the amended statement, her activities ceased. Although her 

exaggerations were not pervasive throughout her testimony, it 

is not our task to assess “whether, if we were sitting as 

fact-finders in the first instance, we would credit or discredit 

an applicant’s testimony.” Xiao Ji Chen v. U.S. Dep’t of 

Justice, 471 F.3d 315, 335 (2d Cir. 2006). We cannot conclude 

that the IJ’s credibility assessment in this instance was 

unreasonable. 

The testimony of the general secretary of the democracy 

group further supports the reasonableness of the IJ’s 

determination. The IJ found the witness to be “unresponsive” 

when asked about the connection between his organization and 

the China Democracy Party, and that he was “interested in 
5

avoiding a discussion of how his organization . . . had been 

formed.” The general secretary acknowledged that the 

organization encouraged members to publish articles in the 

member’s own name to make it “impossible” for them to return 

to China. The IJ inferred that the true reason for this 

practice was to form the basis for an asylum claim. This 

inference was not necessarily unreasonable. See Siewe v. 

Gonzales, 480 F.3d 160, 168-69 (2d Cir. 2007) (providing 

“speculation that inheres in inference is not ‘bald’ if the 

inference is made available to the factfinder by record facts, 

or even a single fact, viewed in the light of common sense and 

ordinary experience”). 

The IJ found that Li did not otherwise rehabilitate her 

testimony with corroborating evidence. “An applicant’s 

failure to corroborate his or her testimony may bear on 

credibility, because the absence of corroboration in general 

makes an applicant unable to rehabilitate testimony that has 

already been called into question.” Biao Yang v. Gonzales, 496 

F.3d 268, 273 (2d Cir. 2007). Li testified that after moving 

to Florida she returned to New York to participate in democracy 

protests. The IJ noted that Li failed to present documentary 

evidence of that travel (plane or bus tickets). 

The IJ also found that Li could not corroborate her 

allegations of forced abortions. She testified that she was 
6

fined for her pregnancy, but did not produce any other evidence 

regarding the fine. She also failed to submit a statement “from 

any relative or close friend in China” to corroborate her forced 

abortion claims. 

Although Li submitted a hospital certificate reflecting 

her second abortion, the 1998 State Department Country Profile 

of China states that “so-called ‘abortion certificates’” are 

typically given to patients after a voluntary abortion. See 

Lin v. Gonzales, 446 F.3d 395, 400 (2d Cir. 2006). Consistent 

with this report, it was not unreasonable for the IJ to find 

it implausible that Li would have received the certificate for 

an involuntary abortion. 

The IJ also found that Li’s demeanor weighed against her 

credibility. “[T]he IJ has the unique advantage among all 

officials involved in the process of having heard directly from 

the applicant,” and so we generally defer to findings of 

demeanor. Zhang v. INS, 386 F.3d 66, 73–74 (2d Cir. 2004), 

overruled on other grounds by Shi Liang Lin v. U.S. Dep’t of 

Justice, 494 F.3d 296, 305 (2d Cir. 2007). Here, however, we 

are not convinced that the IJ’s assessment of her demeanor is 

particularly relevant to her overall credibility. The IJ 

described Li as “dry and low-key” when discussing her abortions 

and characterized Li as “hesitant, not forthcoming, and 

evasive” when answering the Government’s questions about the 
7

conduct that led to her disorderly conduct conviction involving 

her work in a massage parlor. Given the inherently personal 

nature of this questioning, the described demeanor does not 

strike us as abnormal. 

Nonetheless, under the totality of the circumstances, we 

cannot conclude that the IJ’s credibility determination with 

regards to Li’s claims of forced abortions and general 

participation in activities with the DPCNC was unreasonable. 

Accordingly, because the IJ credited her testimony about her 

limited activities with the DPCNC, we must consider whether her 

participation in the protests and authoring of online articles 

establish that she would more likely than not be persecuted or 

tortured in China. 

In the absence of evidence of past persecution, Li must 

“make some showing that authorities in [her] country of 

nationality are either aware of [her] activities or likely to 

become aware of [her] activities.” Hongsheng Leng v. Mukasey, 

528 F.3d 135, 143 (2d Cir. 2008) (per curiam). The likelihood 

of a future event is a finding of fact, Hui Lin Huang v. Holder, 

677 F.3d 130, 134 (2d Cir. 2012), which we review for substantial 

evidence, Xiu Xia Lin, 534 F.3d at 165. 

Here, substantial evidence supports the agency’s finding 

that Li did not show that officials in China are likely to become 

aware of her political activities. By her own account, those 
8

activities were limited to four demonstrations and three 

Internet articles. We cannot conclude that the Chinese 

government is aware or likely to become aware of her 

participation in the protests, or the articles Li authored 

online. See Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013) 

(“[Even assuming] that the Chinese government is aware of every 

anti-Communist or pro-democracy piece of commentary published 

online—which seems to us to be most unlikely—[an alien’s] claim 

that the government would have discovered a single article 

published on the Internet more than eight years ago is pure 

speculation”). 

The objective evidence Li provided did not corroborate her 

claim. The 2011 Country Report on Human Rights described the 

Chinese government’s efforts to crush the banned China 

Democratic Party and its leaders. However, Li testified that 

she belonged to a different organization, the DPCNC, which is 

not expressly banned. Even though the Court has never 

suggested that “the Chinese government’s banning of a 

pro-democracy organization is a legal prerequisite to a 

successful asylum claim,” nor has our jurisprudence been 

“intended to restrict the availability of asylum to members of 

the CDP,” id. at 333, such a ban “may be probative of the 

government’s awareness of that organization’s members and 

activities,” id. Here, Li provides no objective evidence that 
9

the Chinese government is aware of the activities of the DPCNC. 

Moreover, Li did not claim to have any leadership role in the 

organization, and presented no evidence that its members have 

been targeted upon their return to China from the United States. 

Accordingly, this record did not compel the agency to find that 

it is more likely than not that Li will be persecuted if she 

returns to China. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin, 534 

F.3d at 165; 8 C.F.R. § 1208.16(b)(2). 

Because the agency reasonably found that Li failed to 

demonstrate past persecution or a likelihood of future 

persecution, it did not err in denying both withholding of 

removal and CAT relief, which were based on the same factual 

predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 

2006). 

 For the foregoing reasons, the petition for review is 

DENIED. 

FOR THE COURT: 

Catherine O=Hagan Wolfe, Clerk